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California
Law Dictionary
Prescribed by Law
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iLaw Dictionary
California
Law Dictionary
Prescribed by Law
Prescribed by Law
II. The California Constitutional Right to a Jury Trial in Civil Cases
The California Constitution, as originally adopted in 1849, set out the right to a jury trial in the strongest possible terms: “ ‘[T]he right of trial by jury shall be secured to all, and remain inviolate for ever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.’ ” (Exline v. Smith (1855) 5 Cal. 112, 112 (Exline), quoting Cal. Const. of 1849, art. I, § 3.) Soon after the Constitution’s adoption, the Legislature enacted a statute that set out specific situations in which a civil jury is deemed waived and then added, “ ‘The Court may prescribe by rule what shall be deemed a waiver in other cases.’ ” (Exline, at p. 112, quoting § 179 of the Cal. Civil Practice Act [Stats. 1851, ch. 5, § 179, p. 78].)[2]
In Exline the Supreme Court considered a jury waiver that arose under a court rule adopted pursuant to the statute (§ 179 of the Cal. Civil Practice Act). The Supreme Court concluded that our Constitution forbids the creation of judicial rules of waiver, even if such rules are promulgated pursuant to a legislative delegation of such power to the judiciary. The court interpreted the phrase “prescribed by law” within article I, section 3, of the California Constitution of 1849, to mean that the Legislature, alone, had the power to determine the circumstances under which a jury could be waived. “The Constitution has imposed the power as well as the necessity upon the Legislature, of determining in what cases a jury trial may be waived, which cannot be transferred or delegated to any other department of Government. The words ‘prescribed by law,’ look to actual legislation upon the subject, and in no just sense can be extended to a permission of the exercise of this power to others. [¶] . . . [T]he power to ‘prescribe by law’ is legislative, and cannot be conferred on judicial officers . . . .” (Exline, supra, 5 Cal. at pp. 112-113.)
Since Exline, the constitutional requirement that the Legislature prescribe the methods for a civil jury waiver has become firmly rooted. Our Supreme Court has, on numerous occasions, stricken trial court rules and disapproved of appellate court decisions creating nonstatutory waivers. (See People v. Metropolitan Surety Co. (1912) 164 Cal. 174, 177-178 [invalidating local rule setting out nonstatutory basis for waiver]; Biggs v. Lloyd (1886) 70 Cal. 447 [same]; see Robinson v. Puls (1946) 28 Cal.2d 664, 666 [disapproving District Courts of Appeal cases finding waiver when party with legal and equitable claims failed to specify jury issues in its jury demand].)
Post-Exline efforts to modify the California Constitution have reinforced the holding of that case. In the Constitutional Convention of 1878-1879,[3] it was proposed that the requirement of legislative action be deleted and the authority to waive a civil jury be granted to the parties on their own or acting with judicial approval.[4] The primary argument advanced on behalf of the proposed amendments was that the parties should have the freedom to agree to waive a right that belonged to them. Yet, the Convention rejected these proposals and reenacted the jury waiver provision without material change. In relevant part, the new provision stated: “A trial by jury may be waived . . . in civil actions by the consent of the parties, signified in such manner as may be prescribed by law.” (Cal. Const. of 1879, art. I, § 7.) Because the Constitutional Convention of 1878-1879 reenacted the “prescribed by law” terminology contained in the former versions of the California Constitution, it effectively incorporated Exline’s construction of that phrase. (See Sarracino v. Superior Court (1974) 13 Cal.3d 1, 8.)
Nearly a century later, in 1970, the California Constitution Revision Commission considered the impact of the right to jury trial on overcrowded court dockets, but concluded it lacked the expertise to prescribe significant changes, while other, more capable bodies were studying the problem.[5] (Transcript, Cal. Const. Revision Com. meeting of July 23, 1970, pp. 97-98.) The commission did adopt one pertinent modification, further clarifying that only the Legislature may prescribe the manner in which parties may consent to a civil jury waiver: “In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” (Minutes, Cal. Const. Revision Com. meeting of Oct. 8-9, 1970, pp. 5-7, italics added.) Later, the Legislature submitted this revision to the voters, who approved it in November 1974. (Ballot Pamp., Gen. Elec. (Nov. 5, 1974) Proposed Amends. to Cal. Const. with arguments to voters, pp. 26, 70.) The current jury waiver provision, now contained in article I, section 16 of the California Constitution, retains this language.
Hence, California constitutional history reflects an unwavering commitment to the principle that the right to a civil jury trial may be waived only as the Legislature prescribes, even in the face of concerns that the interests of the parties and the courts would benefit from a relaxation of this requirement.
. . . .
Additionally, the plain language of, and policies implicit in article I, section 16 of the California Constitution preclude us from adopting PwC’s construction of section 631 to authorize predispute civil jury waivers. Article I, section 16 requires that the legislature “prescribe” the manner in which a jury may be waived. “Prescribe” means “to lay down a rule: Dictate.” (Webster’s Collegiate Dict. (10th ed. 2000) p. 919.) It is manifest that the timing of the waiver may be significant, given the importance of the right involved. Depending upon their level of sophistication, parties considering a jury waiver postdispute may be far more aware of the consequences of such a decision and, therefore, exercise more care than when the initial contract was executed. The lack of legislative direction in section 631 on the enforceability of predispute jury waivers hardly constitutes the legislative prescription required by our Constitution. We decline to read into section 631, subdivision (d)(2) an authorization for predispute jury waivers that the Legislature has not provided.
CIVIL PROCEDURE, CONTRACTS, PROFESSIONAL MALPRACTICE
GRAFTON PARTNERS LP v. THE SUPERIOR COURT OF ALAMEDA COUNTY
(PRICEWATERHOUSECOOPERS LLP), No. A102790 (Cal. 1st App. Dist.
February 06, 2004)
Only the Legislature may prescribe the method for waiving a civil
jury; since neither Code of Civil Procedure section 631 nor any
other statute authorizes contractual predispute jury waivers, the
parties' agreement is unenforceable.
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[PDF File]
GRAFTON PARTNERS LP v. THE SUPERIOR COURT OF ALAMEDA COUNTY
(PRICEWATERHOUSECOOPERS LLP), No. A102790 (Cal. 1st App. Dist.
February 06, 2004)
HTML File
GRAFTON PARTNERS LP v. THE SUPERIOR COURT OF ALAMEDA COUNTY
(PRICEWATERHOUSECOOPERS LLP), No. A102790 (Cal. 1st App. DisT HTML-ILD.
CCP
GRAFTON PARTNERS LP v. THE SUPERIOR COURT OF ALAMEDA COUNTY
PRICEWATERHOUSECOOPERS LLP), No. A102790 (Cal. 1st App.
Dist.February 06, 2004-CCP)
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